After the Facebook torture video, we ask what’s a hate crime?

Four peo­ple have been charged with com­mit­ting a hate crime for alleged­ly kid­nap­ping and broad­cast­ing the tor­ture of a men­tal­ly chal­lenged teenag­er in Chica­go, but what exact­ly makes a crime a “hate crime”?

Eugene Volokh, an attor­ney and UCLA law pro­fes­sor, explored the ques­tion on his blog The Volokh Con­spir­a­cy before author­i­ties filed charges Thurs­day.

Volokh explained Illi­nois law defines hate crimes as an “attack­er dis­crim­i­na­to­ri­ly select­ing a vic­tim” for rea­sons such as “race, col­or, creed, reli­gion, ances­try, gen­der, sex­u­al ori­en­ta­tion, phys­i­cal or men­tal dis­abil­i­ty, or nation­al ori­gin of anoth­er indi­vid­ual or group of indi­vid­u­als.”

In short, a hate crime is “gen­er­al­ly about the attack­er dis­crim­i­na­to­ri­ly select­ing a vic­tim, not about ‘hate’ as such,” he said.

In this case, the attack­ers seem to have pur­pose­ful­ly picked their vic­tim based on his race and men­tal dis­abil­i­ties lends cre­dence to Chica­go law enforcement’s deci­sion to file hate crime charges, but it is impor­tant to note that “hate-crime laws have been upheld pre­cise­ly because they tar­get phys­i­cal attack, not speech,” Volokh said.

In oth­er words, the attack itself is the only act that can be charged, though racial and oth­er dis­crim­i­na­to­ry insults can be used as evi­dence to prove the attack­ers moti­va­tion and thus esca­late the attack to a hate crime.

Hate crimes moti­vat­ed by dis­abil­i­ty and those moti­vat­ed by race are often treat­ed in the same way in Illi­nois. How­ev­er, at the fed­er­al lev­el, hate crimes moti­vat­ed by dis­abil­i­ty are charged “only when they relate in cer­tain ways to inter­state or for­eign com­merce,” Volokh said. The assailants stream­ing the attack on Face­book could be seen as an act that dis­rupt­ed inter­state or for­eign com­merce, but it remains to be seen if fed­er­al charges will be brought.

Accord­ing to the FBI’s report on hate crimes, there were 5,479 inci­dents of hate crimes in 2014. Of those 5,479 inci­dents, 593 were con­sid­ered Anti-White and 61 were con­sid­ered Anti-Men­tal Dis­abil­i­ty, while 1,621 were con­sid­ered Anti-Black or African Amer­i­can.